COMMONWEALTH OF VIRGINIA Commission on Youth Review of the Standard of Proof to Determine a Founded Case of Child Abuse and Neglect September 18, 2018 Will Egen Study mandate In August 2017, Senator Favola requested that Commission on Youth staff work with the Department of Social Services and Department of Education to update the Commission in reference to an investigative report by NBC4 Washington about a teacher sexual misconduct case. At the September 2017 Commission on Youth meeting, the Commission heard a presentation from the Department of Social Services and the Department of Education on the child protective services (CPS) appeals process and teacher license review process. Commission on Youth staff worked with the Department of Social Services and the Department of Education to craft draft recommendations to be presented at the November 2017 Commission on Youth meeting. The Commission received written and oral public comment on these recommendations. 2 Study mandate At the December 2017 meeting, the Commission adopted a number of recommendations to be presented before the 2018 General Assembly. o Report cases to the Superintendent of Public Instruction when founded. o Report founded cases to the local school board for former school employees. o Shorten the administrative appeals process. The Commission also determined that further study was needed to review the standard of proof for a non-school personnel child protective services investigation vs. a conduct investigation involving a public school employee. The Commission adopted the following recommendation: o Request the Virginia Commission on Youth to study the difference in standards of proof to determine a founded case of child abuse and neglect between school personnel and non-school personnel and to advise the Commission of its findings and recommendations by December 1, 2018. 3 Study Activities Identify and work with impacted stakeholders Convene Advisory Group with impacted stakeholders o August 20, 2018 o September 11, 2018 Conduct extensive background and literature reviews o Virginia law, regulation, and policy o Regulatory town hall, NOIRA, proposed and final documents o Department of Social Services Child and Family Services Manual o Virginia case law o Paul D. Coverdell Teacher Protection Act of 2001 o Journal articles on standards of proof o U.S. Department of Health and Human Services statistics and reports o Other states’ statutes, regulations, studies, and activities 4 Advisory Group Carl Ayers Rebecca Morgan Virginia Department of Social Services Middlesex Department of Social Services Tracey Bailey Patty Pitts Virginia Professional Educators Virginia Department of Education Lori Battin Ben Rand Court Improvement Program, Office of the Blackburn, Conte, Schilling, & Click, P.C. Executive Secretary, Supreme Court of Virginia Dena Rosenkrantz Jeremy Bennett Virginia Educational Association Virginia School Boards Association Dana Schrad Jeanine Harper Virginia Association of Chiefs of Police Greater Richmond SCAN Tom Smith Shannon Hartung Virginia Association of School Superintendents Virginia Department of Social Services Christopher Spain Billy Haun Families Forward Virginia Virginia High School League Nancy Walsh Kimberly Irvine Virginia Department of Education York-Poquoson Department of Social Services Ben Kiser Staff Virginia Association of School Superintendents Amy Atkinson, VCOY Valerie L'Herrou Will Egen, VCOY Virginia Poverty Law Center David May, Legislative Services 5 Standard of proof in a CPS investigation The alleged abuser or neglector must be a caretaker. According to 22VAC 40-705-10 a “caretaker" means any individual having the responsibility of providing care and supervision of a child. Non-school personnel caretakers o The standard in these cases is preponderance of the evidence. Preponderance of the evidence means that the evidence offered in support of the allegation is of greater weight than the evidence offered in opposition. o This standard applies to parents, daycare workers, and volunteer coaches. School personnel caretakers (use§63.2-1511) o When the investigation is completed, the standard to make a founded disposition in addition to the preponderance of the evidence is whether such acts or omissions constituted “gross negligence” or “willful misconduct.” o Put another way: Analysis of preponderance of evidence clearly documents facts to support requirements of § 63.2-1511: . Alleged abuser acting in good faith within the scope of employment as public school employee. Alleged abuser’s actions were not reasonable or necessary to quell disturbance, etc. Facts/Evidence supports finding determination of gross negligence or willful misconduct. 6 Source: http://www.dss.virginia.gov/files/division/dfs/cps/intro_page/manuals/07-2017/section_5_out_of_family_investigations.pdf Definitions Preponderance of the Evidence o Defined in 22VAC40-705-10 as “just enough evidence to make it more likely than not that the asserted facts are true. It is evidence which is of greater weight or more convincing than the evidence offered in opposition.” Gross Negligence o The Supreme Court of Virginia defines “gross negligence” as “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another]. It must be such a degree of negligence as would shock fair minded [people] although something less than willful recklessness.” Willful Misconduct o The Virginia Department of Social Services uses the definition of “willful and wanton conduct” given by the Supreme Court to define “willful misconduct” in the child and family services manual. “In order that one may be [found to have committed] willful [sic] or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.” 7 Source: http://www.dss.virginia.gov/files/division/dfs/cps/intro_page/manuals/07-2017/section_5_out_of_family_investigations.pdf Standards in other states States use a spectrum of standards to determine a founded case. (from low to high) o Reasonable basis, probable cause, and credible evidence – These are all examples of a low standard of proof. o Preponderance – 25 states have this standard. This standard is the most common. o Clear and convincing evidence – This is the highest standard and only one state uses it. Virginia used “clear and convincing evidence” until 1998. Gross negligence or willful misconduct is not considered an evidentiary standard but rather a state of mind element or mens rea. Virginia is unique in having a separate track for school employee investigations. Other states do not have a two-track system. However, not all states conduct school employee investigations through social services. 8 Assessing applicability of §63.2-1511 9 Source: http://www.dss.virginia.gov/files/division/dfs/cps/intro_page/manuals/07-2017/section_5_out_of_family_investigations.pdf Assessing applicability of §63.2-1511 10 Source: http://www.dss.virginia.gov/files/division/dfs/cps/intro_page/manuals/07-2017/section_5_out_of_family_investigations.pdf Applicable law and regulations §63.2-1511 (A) o A. If a teacher, principal or other person employed by a local school board or employed in a school operated by the Commonwealth is suspected of abusing or neglecting a child in the course of his educational employment, the complaint shall be investigated in accordance with §§ § Language 63.2-1503, 63.2-1505 and 63.2-1516.1. Pursuant to 22.1-279.1, no teacher, principal or other person employed by a school board or employed in a school operated by the copied from Commonwealth shall subject a student to corporal punishment. However, this prohibition of Corporal corporal punishment shall not be deemed to prevent (i) the use of incidental, minor or punishment reasonable physical contact or other actions designed to maintain order and control; (ii) the §22.1-279.1 use of reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) the use of reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) the use of reasonable and necessary force for self-defense or the defense of others; or (v) the use of reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or paraphernalia that are upon the person of the student or within his control. In determining whether the actions of a teacher, principal or other person employed by a school board or employed in a school operated by the Commonwealth are within the exceptions provided in this section, the local department shall examine whether the actions at the time of the event that were made by such person were reasonable. Language similar to Corporal punishment 11 §22.1-279.1 Applicable law and regulations §63.2-1511 (B) & (C) o B. For purposes of this section, "corporal punishment," "abuse," or "neglect" shall not include physical pain, injury or discomfort caused by the use of incidental, minor or reasonable physical contact or other actions designed to maintain order and control as permitted in clause Language (i) of subsection A or